Proper context is the “spectacles” through which one is able to see and interpret something for what it actually is.
This is true for every topic which I address in these blogs and this one is no exception.
The basic categories of circumstances which ultimately may lead to the lawful and fair termination of the employment contract, recognised in our labour legislation, are:
- Misconduct on the part of the employee making continued employment undesirable.
- Operational requirements of the employer rendering continued employment not economically feasible.
- Incapacity of the employee rendering the employee incapable to perform in terms of the employment contract.
Of the three categories mentioned above, both operational requirements and incapacity constitute “no fault” circumstances in our labour law.
Applying labour law principles, poor performance, per se, resort within the latter category of incapacity, thus being considered as a “no fault” situation along with medical incapacity.
From this follows that, contextually, unintended poor performance places no blame on the employee and, as such, it requires the employer to approach and remedy the poor performance, first and foremost, from a corrective and employment preservative perspective.
“Cannot do” or “will not do” – that is the question
The fundamental determination which an employer must make when being confronted with poor performance, is to ascertain, as objectively as possible, whether the failure to meet the required standard stems from an inherent inability or from a wilful act.
Several cases which dealt with poor performance at arbitration and in our labour courts grappled with the determination whether misconduct or incapacity underpins the poor performance and often it was found that this distinction was blurred.
Where an employee is able to perform up to standard, but does not do so for no justifiable reason, the matter should be treated as misconduct, following the disciplinary route.
Where there are justifiable reasons as to why the employee is unable to perform up to standard, despite a genuine effort from the employee to do so, the probability is that we are dealing with “no fault”-incapacity.
Probable causes of “no fault” poor performance
Ruling out misconduct as the reason for the poor performance, it needs to be assessed what may cause the poor performance. Let us examine a few causes:
- Poor selection at the recruitment stage
Employers often neglect to go to the trouble of proper reference checking and investigating whether the candidate for employment is capable of performing up to standard.
This may then result in having the proverbial “square peg in a round hole”. Since, in such a situation, several fingers are pointing back at the employer for creating this misfit, rectifying the situation becomes so much more onerous and may require forced accommodation over and above the constraints of employment capacity, costly training interventions to secure a belated “fit-for-purpose” placement or even eventual retrenchment.
If it is difficult to assess the readiness of a particular employee for a position, requiring the employee to undergo a probation period may be appropriate, especially where the employee is (subjectively so) confident that he/she will cope with the position as offered to him/her and objective pre-assessment of suitability is not that easy. A sales position comes to mind within this context.
Legally, and from a substantive fairness point of view, less compelling reasons need to exist for fairly terminating the appointment in the event of a failed probation period.
Probation is however not applicable in all employment situations and should be resorted to with circumspect and caution. For obvious reasons, probation will not be an appropriate intervention in respect of, for instance, in a situation where a candidate is head-hunted.
- Non-existent or inadequate induction
In order to facilitate a proper assimilation of a newly employed employee into the working environment, an effective and functional induction programme is of great value to achieve optimal performance of the employee in the shortest, possible time.
Often the induction intervention is however either non-existent or too generic to really benefit the individual’s assimilation process. This inevitably prolongs the employee’s “growing” into the position and achieving optimal productivity.
A “motion picture” perspective of such a situation may eventually show a happy ending, with the employee eventually performing productively.
A “snapshot” view of the process leading up to this end result may however show pockets or “stages” of sub-standard performance, which could have been avoided by a proper induction programme.
- Lack of guidance, instruction, evaluation, and performance counselling
It is naïve to merely put a newly appointed employee in a position (be it a new recruit or someone promoted to a new position) and expect such employee to automatically hit the ground running and perform optimally from the onset. Admittedly, some individuals may be able to do so, but according to the normal distribution curve, the majority would not.
Although the extent of the guidance, instruction, evaluation, and counselling provided to the employee may (and should) differ according to the seniority of the position and the incumbent, the absence of any form of such assistance, to ease the employee into the position in, at least, the initial stage, may either unnecessarily prolong the reaching of optimal performance or may even cause unnecessary discouragement and lack of drive and motivation on the employee’s part and resent and disappointment regarding the appointment from the employer’s side.
How to deal with “no fault” poor performance in the workplace
Firstly, the employer needs to look beyond the superficial manifestation of poor performance in a particular case and assess what the true reason is for the lack of performance. Explore the following in this regard:
- To what extent was the performance standard set and communicated to the employee?
- To what extent was the performance standard a reasonably attainable standard?
- To what extent was the employee’s performance evaluated and constructive feedback and guidance provided?
- Is there concrete evidence that the employee indeed under-performed?
- How serious was the non-compliance to performance standards?
- Has the reason for the under-performance been ascertained in conjunction with the employee?
- Is the employee’s failure to perform solely due to the employee’s doing and not due to circumstances beyond the employee’s control?
- Upon having been apprised of the lack of performance, to what extent was the employee given a fair opportunity to correct his/her performance with reasonable guidance and within reasonable time?
Assuming that these questions have been dealt with and, where identified, shortcomings in management’s approach have been addressed, but the under-performance still persisted, the following procedure should be followed:
- Establish, in conjunction with the employee, whether there is any need for additional training, instruction or counselling to reasonably assist to improve the employee’s performance. Implement such interventions when identified.
- Allow reasonable time for the employee to improve performance and formally warn the employee that persistent under-performance, despite management’s endeavours to assist, may lead to the employee being subjected to an incapacity hearing, which could result in his/her employment in the position being reconsidered.
Important – Reference to “hearing” within this context, should not be confused with a disciplinary hearing, since we are dealing here with a “no fault” situation and the employee is not charged in a disciplinary sense.
It is also not necessary to follow the above steps meticulously in case of a senior employee who are reasonably assumed to be able to judge for himself/herself whether his/her performance is up to standard and to self-adjust, as and when needed.
Where the required standard of performance of such senior position is high and non-compliance with such standard is significantly serious and devastating, terminating employment in the position would reasonably be justified, should the employee fail to perform up to standard. Case in point could be the position of airline pilot.
- If under-performance persists, conduct an incapacity hearing with due observance of the guidelines provided in paragraph 9 of Schedule 8 annexed to the Labour Relations Act (LRA).
This would require the person determining whether a termination of services in the position concerned, based on poor performance, is fair, to consider:
- Whether or not the employee failed to meet a particular performance standard; and
- If it is established that such performance standard was not met, whether or not:
- The employee was aware, or could reasonably have been expected to be aware of the required performance standard; and
- The employee was given a fair opportunity to meet the required performance standard; and
- Terminating the employee’s employment is an appropriate outcome for not meeting the performance standard. Redeployment of the employee to another position, more suited to his/her abilities, may, for instance, be a consideration short of dismissal.
Performance of the employee in the position occupied is eventually inextricably linked to the overall performance of the business. From this follows that employee performance needs to be “managed”.
I put “managed” in inverted commas because I would prefer to refrain from creating the impression that dealing with performance in the workplace can be equated with the cracking of a whip.
Much rather the process of management attending to employee performance should be referred to as “performance development”, which implies that employee performance is constantly under “surveillance” with the sole objective of ensuring optimal performance.
This facilitates the introduction of the necessary adjustments timeously as and when needed. In this way, employee performance is in constant “development” mode, keeping it in tune with changing operational needs.
To use the analogy of the pilot’s flight plan – It specifies the take-off time and location, the flight route, as well as the destination and expected time of reaching it. On the way to the destination, it may happen that some adaptations need to be made to the flight plan due to, for instance, unexpected weather conditions, necessitating deviating from the specified route in order to avoid flying through a storm, but still aiming to reach the destination safely.
Similarly, with performance development, certain unforeseen circumstances may occur and may impact on the performance requirements and standards, such as the occurrence of poor or sub-standard performance at some stage.
In order to still stay on track, some timeous interventions need to be implemented in order to attempt to correct any deviations from the norm. These interventions may have the desired effect, or it may not, but at least every effort to stay on course should be given due consideration and be given its best shot.
J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP